NICHOLAS Darren ROWE v KINGSTON-UPON-HULL CITY COUNCIL and ESSEX COUNTY COUNCIL/
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUMMERY,LORD JUSTICE KEENE |
| Judgment Date | 24 July 2003 |
| Neutral Citation | [2003] EWCA Civ 1281 |
| Date | 24 July 2003 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A2/2003/0811 |
[2003] EWCA Civ 1281
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(His Honour Judge Anthony Thompson QC
sitting as a Deputy High Court Judge)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Mummery
Lord Justice Keene
A2/2003/0811
MR ROSS QC (instructed by Praxis Partners, Leeds LS3 1AB) appeared on behalf of the Appellants. MR IYER (instructed by Messrs Hayes & Storr, Norfolk NR21 9BH) appeared on behalf of the Respondent.
Thursday, 24th July 2003
I will ask Keene LJ to give the first judgment.
This appeal raises issues under sections 14 and 33 of the Limitation Act 1980. It is the defendants' appeal from a decision of his Honour Judge Anthony Thompson QC, sitting as a judge of the High Court, on 26th March 2003. It had been ordered that the question of limitation be tried as a preliminary issue. The judge held that the claim, which was one essentially in negligence, was not statute-barred and that even if it had been he would have exercised his discretion under section 33 to disapply the otherwise applicable time limit on the claim.
The claimant, Nicholas Darren Rowe, was born on 2nd October 1974. From the age of five in 1979 he was educated in schools in Hull for which the first defendant was the responsible education authority. This continued until September 1989, when he and his parents moved to Essex. There he attended a school for which the second defendant was the responsible authority. That lasted for a period of two years.
Towards the end of that period, in March 1991, as a result of his parents taking him privately to see an educational psychologist, he was diagnosed as suffering from dyslexia. The trial judge noted as follows:
"4. The fact that he was suffering from dyslexia came as no surprise to his parents who had believed that all along. His mother apparently is also dyslexic and there is no doubt that dyslexia is a congenital condition which can pass from one generation to another."
On 2nd October 1992 the claimant reached his 18th birthday, at which point he ceased in the eyes of the law to be under a disability. Time therefore could begin to run, subject to the provisions of the Act as to the date of his knowledge. On 24th September 1998 the writ in these proceedings was issued, claiming damages against both education authorities. It had been preceded by a notification of claim to the defendants' solicitors in July 1998. The writ was served in January 1999.
It seems clear that the claimant and his parents were prompted to go to see a solicitor in September 1997 by the High Court decision in the case of Phelps v Hillingdon London Borough Council [1997] 96 LGR 1. The judge there had held the education authority vicariously liable for the negligence of an educational psychologist employed by it in failing to identify that the plaintiff was severely dyslexic and failing to mitigate the adverse consequences. That High Court decision was reversed by the Court of Appeal but then restored subsequently by the House of Lords. That is reported at [2001] 2 AC 619. In particular, the House of Lords held that the psychologist had owed a duty of care to the plaintiff and had been in breach of that duty of care.
The claim in the present case alleges that the teachers employed by the defendants failed to identify and to take steps to ameliorate his dyslexia and were thereby negligent, as a result of which he has suffered personal injury, loss and damage. There is no dispute between the parties that this is an action for damages in respect of personal injuries to the claimant to which the three-year time limit under section 11 of the 1980 Act applies. That time limit arises from the provisions of section 11(4) which, insofar as material for present purposes, states:
"… the period applicable is three years from
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured."
The "date of knowledge" is defined by section 14(1) as being a reference:
"… to the date on which he first had knowledge of the following facts-
(a) that the injury in question was significant; and
(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
(c) the identity of the defendant; and
(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
And knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant."
The judge below found no real difficulty with regard to knowledge of the matters set out in paragraphs (b), (c) and (d) of section 14(1), though in respect of (b) that was subject to the claimant's knowledge satisfying paragraph (a). It was, indeed, paragraph (a) that the judge was concerned about, with its requirement that the person know that the injury in question was significant. The judge described that as "the stumbling block" —see paragraph 14 of the judgment.
Section 14(2) is relevant to that. It provides:
"For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting procedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment."
Section 14(3) states:
"For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek……."
The judge in the present case found that the claimant did not know that he had suffered an injury "until the position was brought home to him by the decision of the court in the Phelps case" (paragraph 29 of the judgment). He rejected a submission on behalf of the defendants that all that the claimant did not know until the Phelps case in September 1997 was that he had a good case in law against the education authorities. That would not have assisted the claimant: see Dobbie v Medway Health Authority [1994] 1 WLR 1234 and Robinson v St Helens Metropolitan Borough Council [2002] ELR 681. The judge emphasised the problems arising in a case such as this where the defendants had not caused the dyslexia itself, that being a congenital condition, and where their alleged breach of duty consists of an ommission to take remedial steps which could have mitigated the adverse consequences of that condition. Since the claimant did not know until the Phelps decision that he had suffered an injury, section 14(1)(a), said the judge, could not have been satisfied until then.
The judge's reasoning on this point was clarified immediately after the delivery of the judgment at the request of the defendants' counsel, Mr Stagg, who sought to establish the judge's findings as to the extent of the claimant's knowledge. This is an important part of the judge's findings. I therefore quote from the relevant part of the transcript at pages 478 to 479 of the bundle:
MR STAGG: … I would like to ask for clarification of your Lordship's findings of fact on the claimant's state of knowledge. I believe, if I understood your Lordship's judgment correctly, that you have found that he knew before the age of 18 first that he was dyslexic. Secondly, that there were things that could be done to help him with his dyslexia.
THE JUDGE: That he was not receiving remedial education treatment, yes.
MR STAGG: And that he had not received things that could have helped him throughout his schooling.
THE JUDGE: Yes.
MR STAGG: Could I ask your Lordship to clarify that you have found those as facts?
THE JUDGE: Yes, those are facts but his state of knowledge is that he did not know that he had suffered an injury."
It is acknowledged on behalf of the respondent, the claimant below, by his counsel Mr Iyer that those passages indicate the state of the claimant's knowledge before the age of 18.
On the basis of those findings, Mr Ross QC on behalf of the defendants submits that the judge could not properly find that the claimant did not know that he had suffered a significant injury by the time of his 18th birthday on 2nd October 1992, with the result that the three-year limitation period expired in October 1995, long before the issue of the writ in September 1998. It is contended that what a claimant has to know under section 14(1)(a) is that he has suffered an injury in fact, not that he has suffered something which amounted in law to an injury within the meaning of section 14(1). Since the claimant has been found to have known before his 18th birthday that he was dyslexic, that there were things which could have been done to ameliorate his condition and that the school had failed to do any of those things, paragraph (a) of section 14(1) was satisfied at that time. The injury, says Mr Ross, is the failure to ameliorate the condition's adverse consequences, and the claimant knew of that failure. All that the claimant did not know until the Phelps decision was that he had a potential cause of action against the education authorities, and that is irrelevant: see Robinson and see also the express...
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